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[2011] ZALCJHB 142
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Northern Platinum Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR824/07) [2011] ZALCJHB 142 (29 June 2011)
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD IN JOHANNESBURG
Not reportable
Case
No:JR824/07
In the matter between:
NORTHAM
PLATINUM LTD
A
pplicant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION (CCMA) FirstRespondent
A.RAMALOTJA Second
Respondent
NATIONAL UNION OFMINEWORKERS
obo
NTSAHBELE ThirdRespondent
Date of hearing : 3 June 2011
Date of judgment : 29 June 2011
JUDGMENT
GUSH J
1. The applicant in this matter
applies for the award of the second respondent to be reviewed and set
aside only in so far as the
second respondent found that the
applicant had failed prove that the third respondent was guilty of
sexual harassment and that
his dismissal was accordingly unfair.
2. The third respondent had been
charged with sexual harassment and absenteeism and had been found
guilty by the applicant on both
charges and dismissed. The third
respondent referred a dispute to the first respondent which dispute
was arbitrated by the second
respondent. The second respondent found
that the applicant had conducted the disciplinary enquiry in
accordance with a fair procedure
and had fairly found the third
respondent guilty of absenteeism. Having found that the applicant had
failed to prove, “on
a preponderance of probabilities”
that the third respondent was guilty of sexual harassment, the second
respondent determined
that the decision to dismiss the third
respondent was unfair and ordered the applicant to reinstate him.
3. The third respondent was
employed by the applicant on 14 March 2003 as a general labourer. At
the time of his dismissal, on
12 December 2005, he held the position
of assistant grade one construction.
4. The incident that led to the
third respondent dismissal took place on 19 November 2005, was
reported to the applicant on 24 November
2005 and ultimately led to
the disciplinary enquiry and dismissal of the third respondent.
5. At the arbitration that
followed, the applicant led the evidence of the complainant only in
respect of the sexual harassment
charge and the third respondent gave
evidence himself.
6. The second respondent
recorded in his award that he was faced with two conflicting versions
and that:
“
...
the surrounding factors do not also provide aid to assist me in this
regard. Setsoe (the complainant) alleges that the [third
respondent]
uttered the words and the [third respondent] denies it ... As to why
she delayed [reporting the incident] her submission
is that she was
too busy.”
7. The second respondent then
concluded:
“
Having
heard both parties’ evidence and saw (sic) the demeanour of the
witnesses, I can only conclude that the evidence of
the applicant is
more probable. The respondent failed to prove its case on a
preponderance of probabilities in respect of this
count. The
applicant is consequently found not guilty of this charge.”
8. The applicant's grounds of
review are that the second respondent committed a gross irregularity
in the conduct of the arbitration
proceedings and/or exceeded his
powers and/or acted unjustifiably in that he dismissed the evidence
of the applicant’s witness
and failed to attach sufficient
weight to the veracity thereof and by deciding that the applicant had
failed to prove the charge.
9. These
grounds are more akin to grounds of appeal than grounds of review.
The role of the court in considering applications to
review decisions
of arbitrators is set out in
Bestel
v Astral Operations Ltd and Others
1
,
where the Labour Appeal Court held:
“
It
is important to emphasise ... that
the ultimate
principle upon which a review is based is justification for the
decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.”
2
10. Further
to this, following the decision in
Sidumo and another v
Rustenburg Platinum Mines Ltd and Others
3
which established the test which requires the court to determine the
reasonableness of the result or outcome of the award, or as
set out
in
Bestel
determining
the “justification for the decision”, the court has
recognised that:
“
...
in addition to the result-based test established by
Sidumo
... an award will also be reviewable for process-related reasons,
where the commissioner, for example, commits a (latent) gross
irregularity in the form of a material error of law or the failure to
apply the mind to materially relevant considerations. In
addition to
constituting a (latent) gross irregularity, these errors also
constitute acts of what may be termed “process-related”
unreasonableness.”
4
11. The issue therefore,
considered together with a consideration of the reasonableness of the
award, is whether it can be said
that the second applicant “committed
a gross irregularity, exceeded his powers or acted unjustifiably”
in that in reaching
his decision that the applicant had failed to
prove that the third respondent had committed the misconduct or
whether the applicant
is merely appealing against the decision of the
second respondent.
12. In argument, the applicant
submitted that the conclusion reached by the second respondent was
“sweeping” and “unsubstantiated”
and that
this constituted a gross irregularity or misconduct. In his award,
the second respondent who had the benefit of hearing
and seeing the
witnesses give their evidence in person summarised their evidence and
concluded that there were two conflicting
versions and that in there
are no surrounding factors to assist him in determining the whose
version is correct. The second respondent
then concluded that the
applicant had not established on a balance of probabilities that the
third respondent was guilty of the
misconduct on the strength of his
having heard the evidence and observed the witnesses demeanour.
13. It is so that the alleged
misconduct is serious and that employers are obliged to take such
matters seriously and act accordingly.
The difficulty faced by
employers in pursuing incidents of sexual harassment however is that
there are seldom witnesses to the
misconduct and the arbitrator is
more often than not faced with two conflicting versions. In such
circumstances it is imperative
for the employer to adduce such
corroborating evidence as may be available. In matters concerning
allegations of sexual harassment
an arbitrator is enjoined to be
cautious when faced with the evidence of a single witness and only
the employee’s evidence
in reply in determining which of the
two versions is to be preferred. An important consideration in this
regard is that the employer
bears the onus in establishing the
misconduct on a balance of probabilities. The second respondent has
clearly taken this into
account.
14. Where, however, it is clear
that a commissioner has failed to take into account material evidence
and, had he done so, the result
may have been different the
commissioner commits a gross irregularity and the award may be
reviewable. The applicant however does
not accuse the second
respondent of not taking into account material facts but accuses the
second respondent of not giving what
it believes to be sufficient
weight to the facts and evidence and the probabilities. That in
essence, constitutes an appeal against
his assessment and the
conclusion he reached having heard the evidence and having observed
the witnesses as opposed to an irregularity
on the part of the second
respondent.
15. Although the second
respondent’s analysis of the evidence is brief, it cannot be
said that he did not take into account
material evidence properly
placed before him. Whilst this court may disagree with his
conclusions, it cannot be gainsaid that
the second respondent had the
benefit of hearing the evidence in person. That his conclusions may
differ from that of this court
in itself does not make the award
reviewable
16.
In the recent matter of
National Union of Mineworkers v Samancor Ltd and Others
5
the SCA held tha
t:
“
It
is trite that an appeal does not lie against the award of an
arbitrator. Even if the reviewing court believes the award to be
wrong, there are limited grounds upon which it is entitled to
interfere.
Section 145
of the
Labour Relations Act 66 of 1995
permits the Labour Court to set aside an award for one or other
defect stated in
s 145(2).
”
6
17. In the
circumstances I am not satisfied that the second respondent committed
misconduct or a gross irregularity in reaching
the conclusion that
the applicant had not proved on a balance of probabilities that the
third respondent was guilty of misconduct.
Even applying the test as
enunciated in
Sidumo
it cannot be said that the decision by the second respondent was one
that a reasonable decision maker could not have reached.
18. As regards costs
section 162
of the
Labour Relations Act gives
the court a discretion to make an
order for costs according to the requirements of law and fairness.
In the circumstances of this
matter I am of the view that the
dictates of fairness are that no order as to costs should be made.
19. I make the following order:
19.1. The application is
dismissed;
19.2. There is no order as to
costs.
___________
GUSH
J
Appearances:
For the Applicant: For the
applicant : Adv G J Scheepers
Instructed by : van Zyl le Roux
& Hurter Inc.
For the Third For the
respondent : Mr. Motaung
Instructed by : Nomali
Tshabalala Attorneys.
1
[2011]
2 BLLR 129
(LAC).
2
At
para 18.
3
[2007]
12 BLLR 1097
(CC)
4
SA
Airways (Pty) Ltd v Blackburn and Others
[2010] 3 BLLR 305
(LC) at 21
5
(625/10)
[2011] ZASCA 74
(25 MAY 2011)
6
Para
5